92 Decision Citation: BVA 92-14312
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-51 059 ) DATE
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THE ISSUES
1. Entitlement to special monthly compensation for loss of
use of the lower extremities.
2. Entitlement to a certificate of eligibility for
assistance in acquiring an automobile or other conveyance,
or specially adapted equipment.
3. Entitlement to a certificate of eligibility for
assistance in acquiring specially adapted housing.
4. Entitlement to a certificate of eligibility for
assistance in acquiring a special home adaptation grant.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) from a rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida. The veteran performed active honorable service
from February 1950 to September 1951. A February 1991
rating decision denied entitlement to service connection for
loss of use of the lower extremities and a certificate of
eligibility for assistance in acquiring an automobile or
other conveyance or specially adapted equipment. The notice
of disagreement for the above determination was received on
August 16, 1991. The statement of the case was issued on
September 12, 1991. The substantive appeal was received on
October 3, 1991. The veteran's case was referred to the
Disabled American Veterans for a written argument in
December 1991. The case was received and docketed at the
Board in December 1991. The Disabled American Veterans
submitted additional written argument on the veteran's
behalf in March 1992.
The issues for appellate consideration have been expanded to
include entitlement to a certificate of eligibility for
assistance in acquiring specially adapted housing or a
special home adaptation grant in view of Myers v. Derwinski,
U.S. Vet. App. No. 90-221 (Jan. 18, 1991), EF v. Derwinski,
U.S. Vet. App. No. 91-533 (June 21, 1991), and Douglas v.
Derwinski, U.S. Vet. App. No. 90-678 (Jan. 24, 1992).
REMAND
Service connection has been granted for residuals of a
gunshot wound with fracture of the spinal column, rated
analogous to severe paralysis of the right sciatic nerve,
rated as 60 percent disabling; residuals of a gunshot wound
with fracture of the spinal column, rated analogous to
severe paralysis of the left sciatic nerve, rated as
60 percent disabling; weakness of the abdominal muscles
(Muscle Group XIX), rated as 30 percent disabling; residuals
of old fractures of the 4th and 5th posterior ribs with
retained foreign body, rated as 20 percent disabling; and
spontaneous pneumothorax, rated noncompensable. The
combined schedular evaluation is 100 percent (bilateral
factor considered).
The veteran was afforded the benefit of a special
neurological examination by the VA in August 1990. The
clinical objective findings reported on the above
examination were limited and are at this point somewhat
dated. Up-to-date comprehensive diagnostic studies would
materially assist us in considering the veteran's appeal.
It is our opinion that the evidentiary record as presently
constituted is insufficient to allow us to consider the
veteran's appeal at this time, thereby allowing us to order
a medical examination. Colvin v. Derwinski, U.S. Vet. App.
No. 90-196 (March 8, 1991).
The VA has a duty to assist the veteran in the development
of facts pertinent to his claim. 38 U.S.C. 5107(a) (1991);
38 C.F.R.A. § 3.103(a) (1991). The United States Court of
Veterans Appeals has held that the duty to assist the
veteran in obtaining and developing available facts and
evidence to support his claim includes obtaining adequate VA
examinations. Littke v. Derwinski, U.S. Vet. App. No. 89-68
(December 6, 1990). This duty includes additional VA
examination by a specialist, when recommended or indicated.
Hyder v. Derwinski, U.S. Vet. App. No. 90-254 (April 15,
1991). Under the circumstances of this case, we find that
additional assistance is required. The case is REMANDED to
the agency of original jurisdiction for the following:
The veteran should undergo VA orthopedic
and neurologic examinations for the
purpose of ascertaining residual function
of each lower extremity. The
examinations are to be conducted in
accordance with diagnostic procedures
outlined in Chapters 2 and 13 of the VA
Physician's Guide for Disability
Evaluation Examinations. All diagnostic
studies should be correlated and each
examiner should express an opinion as to
whether the remaining function of either
or both lower extremities would be
equally well served by an amputation at
the site of election with a suitable
prosthesis. The claims file should be
made available to the examiners prior to
and during their respective
examinations.
Following completion of these actions, the agency of
original jurisdiction should review the evidence and
determine whether the veteran's claims may now be granted.
If not, the veteran and his representative should be
provided with an appropriate supplemental statement of the
case which includes consideration of the criteria under
38 U.S.C.A. §§ 2101, 2101(b) (1991) and 38 C.F.R. §§ 3.809,
3.809(a) (1991), and the case should be returned to the
Board for further appellate consideration.
The purpose of this REMAND is to obtain clarifying
evidence. No action is required of the veteran until he
receives further notice.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
J. E. DAY M. WOLOWITZ
SAMUEL W. WARNER
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.